Lambries v. Saluda County Council

THE STATE OF SOUTH CAROLINA
In The Supreme Court
Dennis N. Lambries, Respondent,
v.
Saluda County Council; T. Hardee Horne, Chairman;
William "Billie" Pugh, Councilman; Steve Teer,
Councilman; Jacob Schumpert, Councilman; and James
Frank Daniel, Sr., Councilman; Petitioners.
Appellate Case No. 2012-212790
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal From Saluda County
The Honorable William P. Keesley, Circuit Court Judge
Opinion No. 27400
Heard May 7, 2014 – Filed June 18, 2014
REVERSED
Christian G. Spradley, of Moore, Taylor & Thomas, P.A.,
of Saluda, and Katherine Carruth Goode, of Winnsboro,
for Petitioners.
Richard R. Gleissner, of Gleissner Law Firm, LLC, of
Columbia, for Respondent.
Robert E. Lyon, Jr., John K. DeLoache, and Alexander
White Smith, all of Columbia, for Amicus Curiae South
Carolina Association of Counties.
Danny C. Crowe, of Crowe LaFave, L.L.C., of
Columbia, for Amicus Curiae the Municipal Association
of South Carolina.
ACTING JUSTICE JAMES E. MOORE: This Court granted a petition
for a writ of certiorari to review Lambries v. Saluda County Council, 398 S.C. 501,
728 S.E.2d 488 (Ct. App. 2012), in which the Court of Appeals held, in a matter of
first impression, that Saluda County Council's practice of amending its agenda
during regularly scheduled meetings violated S.C. Code Ann. § 30-4-80 (2007), the
notice provision in South Carolina's Freedom of Information Act (FOIA). We
reverse.
I. FACTS
On December 8, 2008, at a regularly scheduled meeting of the Saluda
County Council, a motion was made and seconded to amend the posted agenda to
take up a resolution. Both the motion and the resolution were voted upon and
passed unanimously during the meeting, which was open to the public. The
nonbinding resolution pertained to water and sewer services, although that subject
was not originally listed on County Council's agenda.
Dennis N. Lambries ("Lambries") filed this action in the circuit court against
the Saluda County Council and its members (collectively, "County Council"),
alleging County Council's amendment of the agenda without notice and in the
absence of exigent circumstances and its passage of a resolution that was not on
the posted agenda violated FOIA's notice provision in section 30-4-80. Lambries
brought the action as a citizen of Saluda County and noted he was also the
Chairman of the Saluda County Water and Sewer Authority.
Lambries sought declaratory and/or injunctive relief. Specifically, Lambries
asked the circuit court to declare that all resolutions, acts, ordinances, and
statements made by County Council in violation of FOIA were null and void, and
he sought injunctive relief to prevent future amendments of an agenda in the
absence of "truly exigent circumstances," adopting the language contained in a
1984 South Carolina Attorney General Opinion.1 Lambries contended the only
exception in section 30-4-80 to the requirement that a public notice include an
agenda, date, time, and place of meeting was for emergency meetings.
Lambries ultimately dropped his request that certain acts of County Council
be declared void and sought only an interpretation of FOIA's notice provision that
would prevent County Council from amending its agenda during regularly
scheduled meetings. The circuit court denied Lambries's request for injunctive
relief and found that under the clear terms of section 30-4-80, which referred to the
publication of an "agenda, if any," an agenda was not even required for regularly
scheduled meetings, and FOIA contained no prohibition on the amendment of a
published agenda. The circuit court rejected Lambries's argument that a sentence
in section 30-4-80 states that an agenda is required, finding it applied only to
"called, special, or rescheduled meetings," not to "regularly scheduled meetings."
The circuit court noted the purpose of FOIA is for the activities of
government "to be in open session and not behind closed doors." The court found
that "the amendment of the agenda was performed in open session and in
accordance with Saluda County Council rules of order as codified in their
ordinances," and S.C. Code Ann. § 4-9-110 (1986) authorizes counties to establish
their own rules and order of business. The circuit court denied Lambries's motion
to alter or amend under Rule 59(e), SCRCP, reiterating that it "d[id] not agree with
the plaintiff's fundamental position that a county council cannot amend agendas for
regularly scheduled meetings without advance notice or exigent circumstances."
The Court of Appeals reversed in a split decision, the majority finding (1) an
agenda is required for regularly scheduled meetings, and (2) County Council's
amendment of an agenda less than twenty-four hours before the meeting violated
the "spirit" and "purpose" of FOIA's notice requirement. Lambries v. Saluda
County Council, 398 S.C. 501, 728 S.E.2d 488 (Ct. App. 2012) (2-1 decision).
1
Op. No. 84-20, 1984 Op. S.C. Att'y Gen. 56, 1984 WL 159828. Lambries
mischaracterizes the Attorney General's opinion as stating agendas are required for
regularly scheduled meetings. However, the Attorney General actually stated that
agendas are posted for regularly scheduled meetings "if there is an agenda[.]" Id.
at *2. Moreover, the language referenced by Lambries, wherein the Attorney
General "advise[d] that in the absence of truly exigent circumstances, [FOIA]
requires a public body to give notice in the manner prescribed," was made in the
context of stating FOIA's notice requirements did not apply to emergency
meetings. Id. at *4.
This Court granted County Council's petition for a writ of certiorari. In addition,
the Court has accepted briefs in support of County Council from the amici curiae,
the Municipal Association of South Carolina and the South Carolina Association of
Counties.
II. STANDARD OF REVIEW
As an initial matter, County Council contends "the Court of Appeals applied
the wrong standard of review" when it found it could decide the issue presented in
this case "with no particular deference to the circuit court." County Council
contends the matter should be reviewed under an abuse of discretion standard, as
indicated by the dissent.2
"Actions for injunctive relief are equitable in nature." Denman v. City of
Columbia, 387 S.C. 131, 140, 691 S.E.2d 465, 470 (2010). "An injunction is a
drastic remedy issued by the court in its discretion to prevent irreparable harm
suffered by the plaintiff." Id. at 140-41, 691 S.E.2d at 470 (citation omitted).
"An order granting or denying an injunction is reviewed for [an] abuse of
discretion." Strategic Res. Co. v. BCS Life Ins. Co., 367 S.C. 540, 544, 627 S.E.2d
687, 689 (2006). "An abuse of discretion occurs when the trial court's decision is
based upon an error of law or upon factual findings that are without evidentiary
support." Fields v. J. Haynes Waters Builders, Inc., 376 S.C. 545, 555, 658 S.E.2d
80, 85-86 (2008) (emphasis added).
"Upon review of an action in equity, this Court may make factual findings
based on its own view of the preponderance of the evidence." Scratch Golf Co. v.
Dunes W. Residential Golf Props., Inc., 361 S.C. 117, 120-21, 603 S.E.2d 905, 907
(2004). "Determining the proper interpretation of a statute is a question of law,
and this Court reviews questions of law de novo." Town of Summerville v. City of
N. Charleston, 378 S.C. 107, 110, 662 S.E.2d 40, 41 (2008). "In a case raising a
novel issue of law regarding the interpretation of a statute, the appellate court is
free to decide the question with no particular deference to the lower court." Sloan
v. S.C. Bd. of Physical Therapy Exam'rs, 370 S.C. 452, 466, 636 S.E.2d 598, 605
(2006). "The appellate court is free to decide the question based on its assessment
of which interpretation and reasoning would best comport with the law and public
2
The dissenting judge found, as an alternative basis for affirming, that the
issuance of an injunction is within the trial court's discretion. Lambries, 398 S.C.
at 507-08, 728 S.E.2d at 492 (Pieper, J., dissenting).
policies of this state and the Court's sense of law, justice, and right." Id. at 467,
636 S.E.2d at 605-06.
We find that, while an injunction is equitable and subject to the trial court's
discretion, where the decision turns on statutory interpretation—here, an
interpretation of section 30-4-80 in FOIA—this presents a question of law. As a
result, this Court need not give deference to the trial court's interpretation. If,
based on this Court's assessment, the trial court committed an error of law in its
interpretation of FOIA's notice requirement, that would constitute an abuse of
discretion by the trial court.
III. LAW/ANALYSIS
On appeal, County Council contends the Court of Appeals erred in
interpreting FOIA as prohibiting a public body from amending its agenda at a
regularly scheduled meeting. In analyzing this issue, it will be helpful to consider
the relevant FOIA provisions, the applicable principles of statutory interpretation,
and the reasoning of the Court of Appeals before turning to the propriety of County
Council's conduct.
A. Overview of FOIA Provisions
There is no common-law right to attend the meetings of government bodies,
so many jurisdictions have legislated public meeting statutes, variously referred to
as, inter alia, "open meeting laws" or "Sunshine Acts." See generally 4 Eugene
McQuillin, The Law of Municipal Corporations § 13:10 (3d ed. rev. vol. 2011);
2 Am. Jur. 2d Administrative Law § 84 (2004).
In South Carolina, FOIA governs the public disclosure of the activities of
public bodies, and it has provisions pertaining to public meetings as well as
documents. S.C. Code Ann. §§ 30-4-10 to -165 (2007 & Supp. 2013). The
essential purpose of FOIA is to protect the public from secret government activity.
Wiedemann v. Town of Hilton Head Island, 330 S.C. 532, 500 S.E.2d 783 (1998).
In declaring FOIA's purpose, the General Assembly has found "that it is vital
in a democratic society that public business be performed in an open and public
manner so that citizens shall be advised of the performance of public officials and
of the decisions that are reached in public activity and in the formulation of public
policy." S.C. Code Ann. § 30-4-15 (2007). "Toward this end, [FOIA's] provisions
. . . must be construed so as to make it possible for citizens, or their representatives,
to learn and report fully the activities of their public officials at a minimum cost or
delay to the persons seeking access to public documents or meetings." Id.FOIA's open meeting provision, section 30-4-60, provides "[e]very meeting
of all public bodies shall be open to the public unless closed pursuant to [section]
30-4-70 of this chapter." Id. § 30-4-60. Meetings may be closed for certain
enumerated reasons, including such matters as the discussion of proposed
contractual arrangements and the proposed sale or purchase of property; the receipt
of legal advice related to a pending, threatened, or potential claim; and the
discussion of the proposed location, expansion, or provision of services. Id. § 30-
4-70.
FOIA's notice provision is set forth in section 30-4-80 and requires "written
public notice" of the meetings of public bodies as follows:
(a) All public bodies, except as provided in subsections (b) and (c) of
this section, must give written public notice of their regular meetings
at the beginning of each calendar year. The notice must include the
dates, times, and places of such meetings. Agenda, if any, for
regularly scheduled meetings must be posted on a bulletin board at the
office or meeting place of the public body at least twenty-four hours
prior to such meetings.
All public bodies must post on such bulletin board public notice for
any called, special, or rescheduled meetings. Such notice must be
posted as early as is practical but not later than twenty-four hours
before the meeting. The notice must include the agenda, date, time,
and place of the meeting. This requirement does not apply to
emergency meetings of public bodies.
Id. § 30-4-80(a) (emphasis added). The statutory language is set forth in one
paragraph, but it is separated into two paragraphs here for readability.
"Written public notice must include but need not be limited to posting a
copy of the notice at the principal office of the public body holding the meeting or,
if no such office exists, at the building in which the meeting is to be held." Id.
§ 30-4-80(d).
Any citizen of this state may apply to the circuit court for either or both a
declaratory judgment and injunctive relief to enforce the provisions of FOIA no
later than one year following the date on which the alleged violation occurs or one
year after a public vote in public session, whichever occurs later. Id. § 30-4-
100(a). The court may award attorney's fees and other litigation costs to a
prevailing plaintiff. Id. § 30-4-100(b). Any person or group willfully violating
FOIA shall be deemed guilty of a misdemeanor. Id. § 30-4-110.
B. Principles of Statutory Interpretation
"The cardinal rule of statutory construction is to ascertain and effectuate the
intent of the legislature." Charleston Cnty. Sch. Dist. v. State Budget & Control
Bd., 313 S.C. 1, 5, 437 S.E.2d 6, 8 (1993). "The determination of legislative intent
is a matter of law." Media Gen. Commc'ns, Inc. v. S.C. Dep't of Revenue, 388 S.C.
138, 148, 694 S.E.2d 525, 529 (2010) (citation omitted).
If a statute is ambiguous, the courts must construe its terms. Sparks v.
Palmetto Hardwood, Inc., 406 S.C. 124, 750 S.E.2d 61 (2013). "A statute as a
whole must receive practical, reasonable, and fair interpretation consonant with the
purpose, design, and policy of lawmakers." Id. at 128, 750 S.E.2d at 63 (citation
omitted). "In interpreting a statute, the language of the statute must be read in a
sense that harmonizes with its subject matter and accords with its general purpose."
Id. (citation omitted).
"Where the statute's language is plain and unambiguous, and conveys a clear
and definite meaning, the rules of statutory interpretation are not needed and the
court has no right to impose another meaning." Media Gen., 388 S.C. at 148, 694
S.E.2d at 530 (quoting Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578, 581
(2000)). "If a statute's 'terms are clear and unambiguous, they must be taken and
understood in their plain, ordinary and popular sense, unless it fairly appears from
the context that the Legislature intended to use such terms in a technical or peculiar
sense.'" Id. (citation omitted).
"What a legislature says in the text of a statute is considered the best
evidence of the legislative intent or will." Id. (quoting Norman J. Singer,
Sutherland Statutory Construction § 46.03, at 94 (5th ed. 1992)). "Therefore, the
courts are bound to give effect to the expressed intent of the legislature." Id.
"While it is true that the purpose of an enactment will prevail over the literal
import of the statute, this does not mean that this Court can completely rewrite a
plain statute." Hodges, 341 S.C. at 87, 533 S.E.2d at 582; cf. Lancaster Cnty. Bar
Ass'n v. S.C. Comm'n on Indigent Defense, 380 S.C. 219, 222, 670 S.E.2d 371, 373
(2008) ("In construing a statute, this Court will reject an interpretation when such
an interpretation leads to an absurd result that could not have been intended by the
legislature.").
C. Majority & Dissenting Opinions of the Court of Appeals
The majority of the Court of Appeals found the circuit court's interpretation
of the "if any" language in section 30-4-80(a) to mean that an agenda was not
required for regularly scheduled meetings "is inconsistent with the requirement that
agendas be posted twenty-four hours prior to a meeting." Lambries v. Saluda Cnty.
Council, 398 S.C. 501, 504, 728 S.E.2d 488, 490 (Ct. App. 2012). The majority
found such a construction could allow County Council to "circumvent the notice
requirement by simply not preparing a formal agenda and then discussing matters
on an ad hoc basis at the meeting." Id. The majority reasoned "[s]uch conduct
would not be in keeping with the purpose of FOIA, [so the court would] not
construe a statute in a way that defeats the legislative intent." Id.The majority noted the plain meaning of words in a statute would be rejected
if it leads to an absurdity that is not in keeping with the legislative intent, and it
found if no agenda is required for regularly scheduled meetings, then the
publication requirement for instances when there is an agenda is "superfluous"
because "[m]eetings with or without an agenda are equally open to the public." Id.The majority stated, however, that if "agenda" (which is undefined in FOIA)
"is not viewed narrowly as only a formally prepared piece of paper but instead as
representing the impactful actions and business the paper memorializes, then the
statute can be read harmoniously." Id. In such case, "the 'if any' language simply
recognizes that regularly scheduled meetings of public bodies may occur during
which no formal action or discussion is to take place. If so, there is no agenda and
no requirement for publication of a blank piece of paper." Id. (emphasis added).
The majority acknowledged that the remaining issue, whether a published
agenda of a regularly scheduled meeting could be amended during a meeting
without violating FOIA, was "a close question[] because no provision appears to
prohibit such action." Id. at 505, 728 S.E.2d at 490. However, the majority
ultimately decided allowing an amendment "undercuts the purpose of the notice
requirement in section 30-4-80." Id. The majority stated, "While Lambries does
not argue Council's deeds have been done with ill intent, permitting the
amendments to the agenda during a regularly scheduled meeting is a practice that
could be abused and violates the spirit of FOIA." Id. at 505, 728 S.E.2d at 491
(emphasis added). The majority conceded that its "decision may be inconvenient
in some instances," id. at 506, 728 S.E.2d at 491, and this point has been
extensively argued by the amici in their briefs to this Court.
In contrast, the dissenting judge found no FOIA violation by County
Council, stating: "Section 30-4-80 is completely silent as to whether an
amendment to a published agenda for a regularly scheduled meeting is permitted.
What is clear is that an agenda is not required for a regularly scheduled meeting as
indicated by the 'if any' language in the statute." Id. at 507, 728 S.E.2d at 491-92
(Pieper, J., dissenting). "Because an agenda is not required for a regularly
scheduled meeting, it is difficult to conclude that the statute's silence clearly
demonstrates legislative intent to prohibit a public body from amending a
discretionary agenda." Id. at 507, 728 S.E.2d at 492. "Additionally, [County]
Council's amendment of the agenda did not violate FOIA's purpose of providing
the public access to a public body's actions behind closed doors." Id. "[T]he
meeting was performed in an open and public manner, and the public was advised
of both the meeting and the decisions reached at the meeting." Id.
"Moreover, because a FOIA violation can be criminal in nature, the law
should be clear as to what is proscribed; otherwise, unintended prosecutions could
be threatened." Id. "Until the legislature resolves this issue, I would not judicially
impose requirements that would have the effect of creating new and potentially
unintended criminal liability." Id. Lastly, the dissenting judge observed, "[I]n
light of the admitted lack of legislative clarity on this issue, I would alternatively
affirm the trial court's denial of Lambries' temporary injunction, as the decision to
grant or deny an injunction is within the discretion of the trial court." Id. at 507-
08, 728 S.E.2d at 492.
D. Propriety of County Council's Actions
We find the reasoning of the circuit court and the dissent to be most
persuasive. In reviewing FOIA's notice provision, the General Assembly appears
to have identified three broad classes of meetings and set forth different notice
requirements for each:
(1) Regularly scheduled meetings. "All public bodies . . . must give
written public notice of their regular meetings at the beginning of each calendar
year. The notice must include the dates, times, and places of such meetings.
Agenda, if any, for regularly scheduled meetings must be posted on a bulletin
board at the office or meeting place of the public body at least twenty-four hours
prior to such meetings." S.C. Code Ann. § 30-4-80(a) (emphasis added).
(2) Called, special, or rescheduled meetings. "All public bodies must post
on such bulletin board public notice for any called, special, or rescheduled
meetings. Such notice must be posted as early as is practicable but not later than
twenty-four hours before the meeting. The notice must include the agenda, date,
time, and place of the meeting." Id. (emphasis added).
(3) Emergency meetings. "This requirement [posting a notice including
the agenda, date, time, and place not less than twenty-four hours before the
meeting as required for called, special, or rescheduled meetings] does not apply to
emergency meetings of public bodies." Id. (emphasis added).
The General Assembly did not specifically define any of the foregoing types
of meetings in FOIA. However, we agree with the circuit court and the dissent that
the plain language of the words "if any" can mean only that an agenda is not
required for regularly scheduled meetings. To conclude otherwise would be to
read the words "if any" completely out of the statute. In plain terms, written public
notice of regularly scheduled meetings must be given at the beginning of each
calendar year and must include the dates, times, and places of the meetings. An
agenda, if there is one, must be posted at least twenty-four hours before the
meeting. Thus, County Council could chose to issue no agenda at all.
To the extent the Court of Appeals found the "if any" language was meant to
distinguish two types of regularly scheduled meetings, i.e., (1) those at "which no
formal action or discussion is to take place," for which an agenda is not required
because "publication of a blank piece of paper" serves no purpose, and (2) those
involving action or discussion, which require an agenda, nothing in FOIA supports
this reasoning.
To the contrary, FOIA makes it clear that meetings are not limited to
instances where action is taken, as evidenced in section 30-4-20(d), which defines
a "meeting" as "the convening of a quorum . . . to discuss or act upon a matter over
which the public body has supervision, control, jurisdiction or advisory power."
S.C. Code Ann. § 30-4-20(d) (2007) (emphasis added); see also 62 C.J.S.
Municipal Corporations § 308 (2011) ("Under an open meetings law, a meeting is
a gathering of a quorum or more members of a governing body at which members
discuss, decide, or receive information as a group on issues relating to the official
business of the body. . . . A meeting is not limited to gatherings at which action is
taken by a governing body. Deliberative gatherings are included as well, and
deliberation in this context connotes not only collective decision-making but also
the collective acquisition and exchange of facts in preparation for the final
decision." (footnote omitted)).
Moreover, although the specific types of meetings are not defined in FOIA
itself, in light of the General Assembly's references to these different meetings in
section 30-4-80(a) and its general references in section 4-9-110 to meeting
requirements, we believe the General Assembly made an intentional delineation
because the terms do have commonly understood distinctions in the common
parlance for procedures governing public bodies.
As other jurisdictions have long recognized, a "regular" meeting is one
"convened at a stated time and place pursuant to a general order, statute or
resolution." Barile v. City Comptroller of Utica, 288 N.Y.S.2d 191, 196 (Sup. Ct.
1968). Since notice is given at the beginning of the year, the public is well
apprised of these meetings, which provide an ongoing opportunity for the public
body to consider and act upon routine matters that arise throughout the year.
In contrast, a "special" meeting is a meeting called for a special purpose and
at which nothing can be done beyond the objects specified for the call. Id.; see
also Stoddard v. Dist. Sch. Bd. for Sch. Dist. 91, 12 P.2d 309, 312 (Or. 1932) ("A
meeting called for a special purpose is a special meeting. A regular meeting is one
not specially called, but one convened at a stated time and place pursuant to a
general order, statute, or resolution."); 4 Eugene McQuillin, The Law of Municipal
Corporations § 13:17 (3d ed. rev. vol. 2011) (stating regular meetings are provided
for by ordinance, resolution, or motion under legal authority, while special or
called meetings are convened by the chief executive officer or presiding officer of
the body, or in some other definite way, upon due notice); 39B Words and Phrases
(2006 & Supp. 2013) (citing authorities defining "special meeting" and
distinguishing it from a regular meeting).
In South Carolina, statutory law governing county governments requires
councils to hold at least one meeting each month in accordance with a schedule
prescribed by the council, and special meetings may be called by the chairman or a
majority of the members after twenty-four hours' notice. S.C. Code Ann. § 4-9-
110 (1986). A council must conduct its meetings in accordance with the general
state law affecting the meetings of public bodies, but it is entitled "to determine its
own rules and order of business." Id. This statute supports the premise that there
is a distinction between regularly scheduled meetings and other meetings. Since
the permissible topics for a special meeting are restricted to the "objects of the
call," it is reasonable to infer that our General Assembly has purposefully chosen
to mandate that an agenda be prepared for this type of meeting, as compared to a
regularly scheduled meeting. The consideration of the limited subject matter
necessarily dictates different notice requirements.
By mandating an agenda for regularly scheduled meetings and forbidding
County Council from amending its agenda, the Court of Appeals is, effectively,
treating a regularly scheduled meeting as a called, special, or rescheduled meeting.
As County Council asserts, "[t]he majority's decision expands the scope of [] FOIA
and imposes a new agenda requirement and a new prohibition against amendment
of published agenda not contained in [] FOIA itself." It has long been the law of
this state that where a statute's plain language is clear, a court is not allowed to
change its meaning, and a court cannot speculate on legislative intention because to
do so would be an assumption of legislative power. State v. Lewis, 141 S.C. 207,
139 S.E. 386 (1927); see also Hodges, 341 S.C. at 85, 533 S.E.2d at 581 ("Under
the plain meaning rule, it is not the court's place to change the meaning of a clear
and unambiguous statute.").
In sum, nowhere in FOIA is there a statement that an agenda is required for
regularly scheduled meetings. Since what the General Assembly says in the text of
the statute itself is the best evidence of legislative intent, Hodges, 341 S.C. at 85,
533 S.E.2d at 581, we believe the legislative intent evidenced in the use of the
phrase "if any" is that the issuance of an agenda for regularly scheduled meetings
lies within the discretion of County Council. Cf. 62 C.J.S. Municipal Corporations
§ 148 (2011) ("The functions of a municipal corporation may be either imperative
or discretionary. Whether any particular power or duty is mandatory, permissive,
or discretionary is purely a question of legislative intent." (footnote omitted)).
If the General Assembly wanted to require an agenda for regularly scheduled
meetings, it could have done so with the simple use of the word "shall," which
generally signals a command. Cf. City of Midwest City v. House of Realty, Inc.,
198 P.3d 886, 891 n.6 (Okla. 2008) ("All public bodies shall give notice in writing
by December 15 of each calendar year of the schedule showing the date, time and
place of the regularly scheduled meetings of such public bodies for the following
calendar year. . . . In addition . . . , all public bodies shall, at least twenty-four (24)
hours prior to such meetings, display public notice of said meeting, setting forth
thereon the date, time, place and agenda for said meeting . . . ; provided, however,
the posting of an agenda shall not preclude a public body from considering at its
regularly scheduled meeting any new business." (quoting Okla. Stat. tit. 25, § 311(2001)); cf. Grapski v. City of Alachua, 31 So. 3d 193, 199 (Fla. Dist. Ct. App.
2010) (holding while Florida courts have recognized that notice of public meetings
is mandatory, the preparation of an agenda that reflects every issue that may come
up at a properly noticed meeting is not, and notice need not be given of every
potential deviation from a previously announced agenda; the public has the right to
attend open meetings, but no authority to interfere with the decision-making
process.)
Nor is there any restriction contained in FOIA on the amendment of an
agenda. We agree with the dissent that it appears the majority of the Court of
Appeals engrafted this prohibition onto FOIA based on its subjective view of the
"spirit" and "purpose" of FOIA. Although we understand the concerns articulated
by the majority, the purpose of the notice provision in section 30-4-80 is to prevent
government business from taking place in secret, as noted in our case law, e.g.,
Wiedemann v. Town of Hilton Head Island, 330 S.C. 532, 500 S.E.2d 783 (1998),
and in the General Assembly's statement of purpose in section 30-4-15. The public
was not prevented from finding out the actions of County Council where the
proposed amendment to the agenda and the resolution were both raised and voted
upon in public and were recorded in the minutes of the meeting of County Council.
Since County Council posted the regularly scheduled meeting at the beginning of
the year and posted a discretionary agenda at least twenty-four hours prior to the
meeting, it complied with the requirements of FOIA's notice requirement in section
30-4-80. Cf. Dorsten v. Port of Skagit County, 650 P.2d 220, 223 (Wash. Ct. App.
1982) ("The primary requirement for regularly scheduled meetings is that they be
'open to the public.' Notice of the agenda is required only for special meetings.
RCW 42.30.080.").
Some jurisdictions have provisions in their open meetings laws that
specifically address when and how amendments may be made. E.g., Zoning Bd. of
Appeals v. Freedom of Info. Comm'n, 784 A.2d 383, 385 n.3 (Conn. App. Ct.
2001) ("The agenda of the regular meetings of every public agency . . . shall be
available to the public and shall be filed, not less than twenty-four hours before the
meetings to which they refer . . . . Upon the affirmative vote of two-thirds of the
members of a public agency present and voting, any subsequent business not
included in such filed agendas may be considered and acted upon at such meetings
. . . ." (quoting Connecticut's General Statutes, revision to 1997, § 1-21(a),
recodified at § 1-225(c)); see also 29 Del. Code Ann. tit. 29, § 10004(e)(2) (Supp.
2012) ("All public bodies shall give public notice of their regular meetings and of
their intent to hold an executive session closed to the public, at least 7 days in
advance thereof. The notice shall include the agenda, if such has been determined
at the time, and the dates, times and places of such meetings . . . ; however, the
agenda shall be subject to change to include additional items . . . or the deletion of
items . . . which arise at the time of the public body's meeting.").
In the absence of such a legislative directive here, we decline to judicially
impose a restriction on the amendment of an agenda for a regularly scheduled
meeting, especially when it is clear that no agenda is required at all. We find this
is also the better public policy in light of the fact that a violation of FOIA can carry
a criminal penalty, and we note this Court has previously declined to impose
restrictions that are not expressly provided by the General Assembly in FOIA. See,
e.g. Wiedemann, 330 S.C. at 535 n.4, 500 S.E.2d at 785 n.4 (stating "[t]here is no
requirement, in section 30-4-60 or elsewhere in [] FOIA, that meetings of a public
body be conducted in a public building" and holding "[a]bsent a specific statutory
restriction, [] meetings may be held in locations other than public buildings");
Herald Publ'g Co. v. Barnwell, 291 S.C. 4, 11, 351 S.E.2d 878, 882 (Ct. App.
1986) (citing section 30-4-80(a) and stating FOIA "requires that public bodies post
a public notice of any special meeting including the agenda, date, time and place of
the meeting," but finding FOIA "does not require that an agenda for an executive
session be posted or that the news media be notified of the agenda of an executive
session").
IV. CONCLUSION
We conclude FOIA's notice statute does not require an agenda to be issued
for a regularly scheduled meeting, and FOIA contains no prohibition on the
amendment of an agenda for a regularly scheduled meeting. Thus, we hold County
Council did not violate FOIA in this instance. The imposition of any additional
restrictions in FOIA is a matter for the General Assembly.
REVERSED.
TOAL, C.J., KITTREDGE and HEARN, JJ., concur. PLEICONES, J.,
concurring in result only.